Chilean competition authorities clear acquisitions in salmon farming and lithium compounds 07.01.19

On December 12 the Fiscalía Nacional Económica of Chile (FNE) unconditionally cleared Agrosuper’s acquisition of AquaChile. The transaction created the second largest farmed salmon producer globally. The FNE’s investigation focused on the scope for the transaction to give rise to unilateral effects, finding that the merger was unlikely to give rise to price increases. RBB Economics advised Agrosuper alongside Barros y Errázuriz throughout the proceedings.

Earlier in October, Chile’s Competition Tribunal (TDLC) cleared an agreement between the Fiscalía Nacional Económica and Tianqi Lithium, approving Tianqi Lithium’s $4 bn acquisition of a 26% stake in Sociedad Química y Minera de Chile (SQM). The transaction had been challenged by the Chilean government, on the grounds that it would create a structural link between the largest and the third largest producers of lithium compounds globally. The transaction was ultimately approved subject to behavioural commitments. RBB Economics advised Tianqi Lithium alongside Carey.


Dutch healthcare merger cleared unconditionally 19.12.18

On 17 December 2018 the Dutch competition authority ACM cleared the merger of Bergman Clinics and NL Healthcare Clinics after an in-depth Phase II inquiry, without remedies being required The ACM concluded that there was limited overlap between the parties in providing healthcare services to patients in local and regional markets. In addition the ACM concluded that the merger would not result in a significant strengthening of the bargaining position of the merged entity vis-à-vis health insurers on a national procurement market. RBB Economics advised both parties alongside Houthoff. The ACM’s press release can be found here.


Inquiry into the Competitive Neutrality of the National Broadcasters 17.12.18

On 12 December 2018, the Minister of Communications and the Arts publicly released a report by the Expert Panel, in conclusion to the Inquiry into the Competitive Neutrality of the National Broadcasters.  The ABC had commissioned RBB Economics to prepare a report to aid its submission to the inquiry.  RBB was asked to explore the effects of the ABC on competition in the Australian media sector, and considered the potential for the ABC’s activities to lead to a ‘crowding out’ of the audiences available to other media operators, as well as the potential for the ABC’s activities to lead to pro-competitive effects.  The RBB report considered the differentiation between the ABC and commercial media operators, the nature and scope of initiatives undertaken by the ABC to boost its own audiences, the context of competition for online advertising revenues, and cross-country studies of the effects of public sector broadcasters on commercial media operators, and concluded that there was no evidence of crowding out of the audiences of commercial media operators by the ABC; moreover, the ABC’s activities are likely to have resulted in significant benefits to the wider media industry through licensing, partnerships, and investments in a range of initiatives and types of content.  The Expert Panel concluded that “this Inquiry considers the National Broadcasters are not causing significant competitive distortions beyond the public interest”.


Pacific National/Aurizon – RBB expert testifies in Australian Federal Court 13.12.18

RBB has provided expert testimony in the Australian Federal Court hearings into the proposed acquisition by Pacific National, a rail operator, of the Acacia Ridge Terminal in Brisbane, from Aurizon. The ACCC conducted a detailed investigation into several aspects of the transaction. During the trial in the Federal Court, RBB economist Patrick Smith testified a hot tub, in regard to the relevant market definitions, and the likelihood that the transaction would give rise to anti-competitive vertical input foreclosure. An RBB team led by George Siolis, also considered the profitability and sustainability of one of the rail services previously operated by Aurizon, that had used the terminal. RBB was instructed by Clayton Utz, and Ashurst, solicitors acting for Pacific National and Aurizon, respectively.


Commission approves Sony/EMI music publishing deal 10.12.18

On October 26 the European Commission gave unconditional clearance to Sony’s acquisition of sole control over EMI Music Publishing (“EMI MP”). The transaction combines the recorded music activities of Sony, the music publishing activities of its subsidiary Sony/ATV, and the music publishing activities of EMI MP.

Independent music companies association IMPALA raised concerns with the transaction, claiming that Sony would enjoy excessive bargaining power post-transaction. As in previous transactions in music recording and publishing, the Commission’s competitive analysis focused on the scope for the parties to use a strategy of rights withdrawal to exercise bargaining power in negotiating online rights with digital service providers such as Spotify and iTunes. The parties demonstrated that there was no credible basis for this hypothesis for a number of reasons, including pre- and post-transaction corporate governance arrangements for EMI MP, and the scope for authors to switch between music publishers in response to any withdrawal of rights. The parties also extended previous “control share” analyses undertaken by the Commission, using more comprehensive data than previously available to demonstrate that the parties’ position within the European market for rights licensing would not give rise to bargaining power concerns.

RBB worked with Cleary Gottlieb Steen & Hamilton, counsel to Sony, throughout the notification.